USDC Cr. No. 84-3552
THOMAS v. REAGAN
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WILLIAM THOMAS, et al
Plaintiff Pro Se
versus CA 84-3552
Judge Louis Oberdorfer
UNITED STATES, et al
SUMMARY OF POINTS AND AUTHORITIES
IN SUPPORT OF PLAINTIFFS' REPLY TO FEDERAL DEFENDANTS'
OPPOSITION TO PLAINTIFFS' APPEAL OF THE MAGISTRATE'S
OCTOBER 8, 1986 ORDER
On December 3, 1986 Government counsel filed, and served by
mail, Federal Defendants' Opposition to Plaintiffs' Appeal of the
Magistrate's October 8, 1986 Order. Ostensibly counsel filed this
Opposition because this Court's "November 7, 1986 Order...stated
that plaintiff's appeal was being taken under advisement."
In an effort to distill this matter to its essence,
highlight both the parameters of this controversy (compare page 2
of Federal Defendants' Opposition), and the necessity for this
Court to modify the Magistrate's Order so that there might be a
fair hearing of the complaint, plaintiffs hereby incorporate by
reference the Memorandum in Support of their Motion for Summary
Judgment, filed September 22, 1986, and reiterate briefly the
essence of the Complaint and issues which plaintiffs seek to set
before the Court:
"This action seeks declaratory and injunctive relief against
the manner in which the Government (implemented) or enforces
against plaintiff the amendments to 36 CFR Sections 50.27 ... 36
CFR 50.19(e)(9)(10) (*and 36 CFR 50.19(e)(11)(12)) ("the
regulations") issued by defendant Watt and official Arnett on June
4, 1982 ... June 17, l983 (*and March 5, 1986) respectively, and
enforced by all defendants. Plaintiff has been arrested nineteen
(19) times under color of 36 CFR 50.27 (prior to June 4, 1982,
known as "50.5") and 36 CFR 50.19, and four (4) times under color
of District of Columbia Code regulations, with the intent to
restrict his rights to demonstrate on the public sidewalk in front
of the White House. By (implementing) and/or enforcing the
regulations and arresting plaintiff, defendants have violated
plaintiff's First, Fourth, Fifth, ... Ninth (and Fourteenth)
Amendment rights, 42 USC Sections 1983 and 1985(3), ... the
Administrative Procedure Act (and the Universal Declaration of
Human Rights)." (Complaint para. 18 [*parentheses added from
Amended Complaint, filed October 19, 1986].)
"The Complaint contains numerous ... allegations of police
misconduct, and plaintiff further claims that those acts were the
product of a conspiracy pursued by federal and local officials....
"Plaintiff's Complaint states a substantial federal claim.
The fact that the constitutionality of the DOI regulations is
well-settled does not prevent the plaintiff from claiming ... that
defendants have violated his constitutional rights in the course of
enforcing the regulations...." (Memorandum of this Court, June 3,
"The very essence of civil liberty certainly consists in
the right of every individual to claim the protection of the laws,
whenever he receives an injury. One of the first duties of
government is to afford that protection. (The) Government of the
United States has been emphatically termed a government of laws,
and not of men. It will certainly cease to deserve this high
appellation if the laws furnish no remedy for the violation of a
vested legal right..." (Gunther Constitutional Law, University
Casebook Series, Tenth Edition, pages 4 and 5, citing Marbury v.
Madison, 1 Cranch 137, 2 L. Ed. 60 (1803).
"The Secretary ... cannot by his regulations alter or amend a
law. All he can do is to regulate the mode of carrying into effect
what Congress has enacted." (Morill v. Jones, 106 U.S. 467 ;
see also, Opposition to Federal Defendants' (Second) Motion to
Dismiss, p. 23.)
"In the circumstances existing during the relevant time here
a strong argument could have been made that a regulation
(promulgated under a conspiracy with the intent of) banning all
(effective methods of expression open to plaintiffs, individuals,
or groups of 25 or less, in the Park)* would have been
unconstitutional." (ERA v. Clark, U.S. App. 84-5283, Opinion filed
October 26, 1983, at 16 [*parentheses added from Opposition to
Federal Defendants' (First) Motion to Dismiss, filed March __,
"In light of these facts, plaintiffs' claim that a memo from
Secretary Watt, and subsequent contacts between (defendant)
Robbins, a principle drafter of the regulations, and the Secretary
and the White House take on added significance.... (A) memo from
Secretary ... Watt requested a 'briefing on the regulations that
allow demonstrations and protesters in Lafayette Park and in front
of the White House on Pennsylvania Avenue. My intention is to
prohibit such activities and require that they take place on the
"When (defendant) Robbins spoke to Secretary Watt about
development of the regulation in March of 1983 (just several days
prior to Thomas' arrest by defendant Canfield), the Secretary told
Mr. Robbins to 'keep up the good work.' There was also contact
with the White House counsel of the status of the regulations.
Additionally plaintiffs urge that the key fact that both versions
of the regulations just happened to proscribe all of the
plaintiffs' then current activities on the sidewalk cannot be
regarded as mere co-incidence.
"In the circumstances it would appear that plaintiffs' claim
in this regard can in no wise be characterized as frivolous.... "
(Memorandum Opinion, J. Bryant, REA v. Watt, USDC CA 83-1243, filed
April 26, 1984, Tr. Ex. 132 [parentheses added].)
"The complaint amply alleges a claim of (selective
enforcement). Against this claim the respondants have never
suggested, either in their brief or in oral argument, any
contervailing municipal function which (the alleged regulatory
enforcement against plaintiff has actually served). Gomillion v.
Lightfoot 364 U.S. at 342 (1960), [Parentheses substituting].
THE VIRGIN QUESTION:
"When the socially harmless actions of a specific individual
are guaranteed by the Constitution as legal rights and privileges,
and a group of individuals sworn to uphold the Constitution enter
into consort, first under color of traditions, customs, and
rituals, and later with the introduction of additional
collaborators and the concoction of administrative policy,
(furthered by a co-ordinated scheme to fabricate and
disseminate falsehood with the intent) to color these socially
harmless and Constitutionally protected privileges as criminal
activity, enforced through force, violence, imprisonment,
confiscation, and destruction of property, under the guise of
'governmental interest' ... have the collaborators themselves
conspired in a redressable act?" (Opposition to Federal
Defendants' (Second) Motion to Dismiss, Memo, p. 14.)
"People of the United States are joined only in their
official capacity as citizens of the United States, by virtue of
the fact that when a Government seeks to deny one individual of
civil rights under color of regulation, then all citizens are
deprived of those same rights pursuant to that same regulation."
(Complaint, filed November 21, 1984, para. 5).
"Assuming the validity of plaintiffs' allegations, as the
Court should at this juncture" (Reuber v. USA, 750 F2d 1080, 1061),
the primary question plaintiffs perceive is whether the alleged
combination of "mindless bureaucracy and totalitarian police state
tactics" (see Complaint, at para. 111), tacitly admitted by Federal
Defendants' consistent failure to deny the facts presented in
plaintiffs' allegations, constitutes irreparable injury to
"individual freedom and personal excellence" (ibid).
"To plaintiffs the question is not whether this regulation
causes proximate harm to an individual, rather, they ask how a
nation conceived in liberty and dedicated to the proposition that
all men are created equal can conceivably endure under a mindless
scheme of administrative regulatory abuse cloaked under content
neutrality. This is all the clarification plaintiffs ask."
(Docket Number 238, Motion For Reconsideration at 6 and 7.)
Plaintiffs filed the Complaint, in part, because of
knowledge and belief which indicates that:
"Defendants' unreasonable interference with plaintiffs'
rights is not founded on a legitimate restriction of the manner,
place or time of expression but rather reveals a wholesale attack
on traditional and time-honored rights secured in the
Constitution and Bill of Rights and designed to protect against
Once again, to clarify for the record any possible
misconceptions as to the reasons which impelled this suit,
plaintiffs note that, during the U.S.A. v. Thomas series of cases
in this District, this Court made certain representations which
appeared eminently reasonable and constructive.
"(T)he courts have understood and established that ...
that area right in front of the White House is ... a point of high
visibility for the media, for the public that passes on the street,
for the tourists who come to Washington, for people like yourself
with important messages -- and I do not demean your message -- can
say it so that it can be heard in a way that messages have never
before been hearable and seeable in the history of the world.
"You can stand in front of that White House, and your message
can be seen all over the globe within hours, and your right to do
that is guaranteed.
"Now, in order to enable you to exercise that right, our court
... worked out a system whereby somebody who ... needed to have an
adjudication of that balance between the expression of those rights
and the requirement of the public with respect to the safety and
peace and order around the White House, ... (could) get to court
"We provide ... a civilized way to comply with them, and
we consider it uncivilized when somebody does not want to take the
care, or make available to himself the resources that are
available, to comply with the law." (Judge Louis Oberdorfer,
Transcript December 21, l983, USA v. Thomas, USDC CR 83-186, page
29; emphasis added.)
Again, on July 19, 1984, Judge Oberdorfer expressed similar
sentiments, and instructed Thomas to seek clarification from the
proper officials to insure that he did not run afoul of the law.
Upon seeking clarification, and being refused, plaintiffs filed
this suit pursuant to the Court's suggestion.
There must be absolutely no question that your Honor's words
on those occasions struck a chord of understanding. It seemed
obvious, and the public record supports, that a controversy
existed, and exists, between plaintiffs and the defendants in this
matter. Plaintiffs began from the premise that the Constitutional
principles upon which this country is founded should insure life,
liberty, the pursuit of happiness, and a more perfect union.
However, as Thomas has also observed to your Honor, he holds grave
reservations about whether the system is presently corrupted beyond
any principle other than financial. Repeatedly plaintiffs have
tried to conform their behavior to the law concerning
demonstrations in the White House area as best they could
Judge William Bryant (USA v. Thomas, USDC CR 84-358) as long
ago as July 5, 1983, perceived and articulated, but without
judicial determination, the nature of a pattern of behavior which,
plaintiffs allege, continues to the present time:
"Judge: 'Let me ask you this ... hasn't it been one of
those things where he (Thomas) gets arrested today for doing "x"
conduct, and then he goes back out and he does "x" minus "y"
conduct, right? And he gets arrested. And then he goes back out
and he does "x" minus "y" minus "z" conduct. In other words,
wherever you folks draw the line, he wants to stay on that line?'
"U.S. Attorney: 'He plays games.'
"Judge: 'Well, I don't know who is playing a game, really.'"
Defendants and their agents have consistently refused to
provide clarification, and plaintiffs and their associates have
continued to suffer arrest and harassment at the hands of defen-
After pondering this situation during August and September,
1984, it appeared that either the system was corrupt beyond all
hope, or there were within the system judges who might indeed
entertain some commitment to freedom and equality, thereby holding
out some hope for justice. Deciding to proceed most
optimistically, plaintiffs prayed there was a judge committed to
the principle of equal protection of the law and filed this suit
on November 21, 1984.
More aptly it may be said that plaintiffs filed this suit
because this Court led Thomas to believe there may be a person
within the system who is honestly:
"... sensitive... to the fact that if your country suppresses
the kind of protest that you are engaged in, we would be
jeopardizing the liberty of all of us." (Judge Louis Oberdorfer,
Transcript December 21, 1983, USA v. Thomas, USDC CR 83-186, pages
Plaintiffs claim that, bit by bit, piece by piece, defendants
have chipped away at stare decisis until they have essentially
nickled and dimed the First Amendment to the point of extinction,
while reducing Lafayette Park to the equivalent of Red Square,
where demonstrations can be carried out only when they are a) under
permit issued by the State, or b) so unobtrusive as to not attract
"This raises the interesting legal question of whether a
regulation, valid on its face and adapted for generally valid
purposes, can be claimed to violate an individual's civil rights if
adopted ... to further a conspiracy." (Magistrate's Order August
18, 1986, ftn. 2, p. 3.)
Even more pertinent to this case, plaintiffs believe, is the
interesting legal question of whether 36 CFR 50.19(e)(11)(12) was
adapted for generally invalid, illegal, or totalitarian purposes
with the specific intent of violating individual civil rights under
color of regulation.
Plaintiffs believe the federal defendants' representations in
these regards are incorrect for at least several reasons.
First, counsel characteristically ignores the
allegationthat, beginning in 1981, defendants or their agents have
mounted a campaign designed to chill, hamper, disrupt or terminate
plaintiffs' communicative activities in the White House area,
through the expedient of coloring those communicative activities
(without probable cause) as criminal behavior, or by selectively
enforcing various regulations against plaintiffs (without
furthering any substantial government interest), and stifling
plaintiffs' First Amendment exercise.
Second, the record is also clear on the allegations that
plaintiffs have personally suffered (see Restatement of Claim,
filed July 21, 1986, para. 112(a)-(m)) as a direct and proximate
result of actions performed by defendants or their agents.
Essentially defendants do not dispute any of plaintiffs' allegations, but simply content themselves with ill-recalled self-serving
denials to the effect that they did not conspire.
Third, plaintiffs do not believe this Court should accept
counsel's representation that the defendants and/or their agents
are somehow being prevented by plaintiffs from performing their
jobs. This characterization is absurd, as plaintiffs will readily
be able to prove if allowed to mount a challenge to the March 5,
1986 regulation. On the other hand, if this Court allows
plaintiffs' claim against 36 CFR 50.19(e)(11)(12) to be severed
from this case, further litigation becomes a worthless task, and
plaintiffs are denied the possibility of recovering or recouping
against any of the injury they have suffered.
Fourth, counsel appears to rely upon representation that there
has been no injury because plaintiffs have "apparently complied
with the regulation" (see Federal Defendants' Opposition to
Plaintiffs' Motions for Temporary Restraining Order, For Default
Judgment, and to Compel Production of Documents, filed June 25,
1986, at 2). This would be laughable, if it weren't so serious.
Indeed plaintiffs have complied with the regulation; nonetheless,
they have suffered in their ability to communicate and continue to
be harassed, intimidated, and arrested by defendants' agents.
(Plaintiffs will gladly present affidavits, photographs, and other
documentation to prove that the harassment, intimidation, and
arrests (without probable cause) are taking place on a nearly daily
basis against plaintiffs and their associates as of the filing of
this document, should the Court so request.)
Prohibiting individuals from reaching their audience, the
public, on a public sidewalk is a combination prior/post restraint
(Near v. Minnesota, 283 US 697 (1931)), an unnecessary infringement
on the pursuit of personal excellence, and an abridgement of the
individual's freedom and right to communicate with others through
the written, spoken, and/or symbolic word (Martin v. City of
Struthers, 319 US 141 (1943); Lovell v. Griffin, 303 US 444
(1938)). Reproachful presence and signs critical of genocidal
weapons express an individual opinion in a manner that leaves
potential recipients free to accept, investigate, or ignore during
the course of their thoroughfare of a public park. Deprivation of
First Amendment rights to communicate in a nonviolent, effective,
and unobtrusive manner constitutes irreparable injury. (Elrod v.
Burns, 427 F2d, 347, 373 (1976); A Quaker Action Group v. Hickel,
42l F2d 1111, 1116 (DCCir 1969).) (See Complaint page 118-119,
para. 161, see also Plaintiff's Affidavit In Support Of Motion For
Temporary Restraining Order filed June 19, 1986; see also William
Thomas' Declaration of Motives and Irreparable Injury, filed July
Respectfully submitted this____day of
William Thomas, Plaintiff Pro Se
1440 N Street, N.W. Apt. 410
Washington, D.C. 20005
Ellen Thomas, Plaintiff Pro Se
Peace Park Antinuclear Vigil
P.O. Box 27217, D.C., 20038
Case Listing --- Proposition One ---- Peace Park